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ICYMI: Our Social Media Posts This Week – Jan. 22-28, 2017

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 1/22/17 we suggested you get permission to kill employees' phones – and make it part of your BYOD policy. You have a BYOD policy, right? So make sure it grants authority for the employer to remotely wipe the phone if and when appropriate. Get the employees' permission in writing. Read the post.

TAKEAWAY: Protect your data in all means possible – including from (former) employees' personal devices that were (ostensibly?) used for work for the employer.

The post on Monday 1/23/17 gave us 9 FMLA record-keeping requirements employers need to know. So what are they? First is that records must be maintained in a way that is able to be reviewed or copied – whether that is hard or electronic is up to you. Next, those records have to contain basic payroll and related data about the employee's compensation. Third, for FMLA leave of less than a full work day (think intermittent leave), you must maintain records of the hours taken. The rest of the requirements are in the post.

TAKEAWAY: You will have employees taking advantage of their leave rights under the FMLA, so know the requirements surrounding maintenance of records of those leaves.

In the post on Tuesday 1/24/17 we noted the strip club's stage lease doesn't stop wage suit. Huh? A stripper signed a contract for space for her performance; the document contained a provision prohibiting her from suing (in favor of arbitration). The court disagreed (its reasoning is in the post).

TAKEAWAY: Make sure your contracts say what you think they say – have them written (or at least reviewed) by an attorney.

The post on Wednesday 1/25/17 was about African Americans claiming discrimination in a class action suit against CNN and TBS (and the parent, Time Warner). One plaintiff was an executive administrative assistant at CNN and the other is employed as a senior manager at TBS. The complaint runs 40 pages and alleges lower salaries based on race, along with less (or no) promotions to higher levels for African Americans. The post also talks about 3 other pending suit against the same defendants, one alleging retaliation and failure to promote based on race and the other 2 detailed in the post.  

TAKEAWAY: None of these suits has yet played out, but from the surface they look bad – and that may be all that's needed for any business to ante up big bucks and settle.

In the post on Thursday 1/26/17 we talked about Targeting FMLA fraud and abuse: 10 ways to reduce subtle abuse. The post starts out with good hints: keep an eye open for absences concentrated in one department or among the same persons as well as those that coincidentally hit weekends or holidays. It then lists some ways to reduce FMLA abuse, including (1) train supervisors, (2) do your FMLA homework, (3) require certification and recertification of the medical condition, and 7 others in the post.

TAKEAWAY: Don't just expect your employees to know what they must do – start with training and put in place a full "program" to be followed relative to the FMLA. Then follow it.

The post on Friday 1/27/17 noted student athletes are not employees under the FLSA. Note, however, that this case (or others in related contexts like the NLRA) may make its way to the US Supreme Court, so keep an eye out. Here the court said that participation in college sports does not make the students employees entitled to compensation. The suit was brought under the FLSA's minimum wage and overtime provisions. The trial court judge dismissed the case (the bases are in the post); the appeals court affirmed. Key holdings on appeal were that determination of employment status under the FLSA is to be flexible and look closely at the actual relationship between the student-athlete and the college (including the long tradition of amateurism in college sports). The post mentions another key point made by the appellate court about the Department of Labor's own Field Operations Handbook. The appeals court also noted, "Simply put, student-athletic 'play' is not 'work,' at least as the term is used in the FLSA."

TAKEAWAY: Colleges can breathe a sigh of relief – but businesses who use students or other interns may not yet be out of the woods when it comes to other services performed.

Finally, the post on Saturday 1/28/17 said that a one-employee furlough is evidence of FMLA retaliation. The employee showed that he was furloughed 2 days after requesting leave and that he was the only one treated that way. The case was sent on to a jury on the issues of why the RIF hit only 1 employee and why there is nothing showing the RIF was planned prior to the FMLA leave request having been made. More details are in the post.

TAKEAWAY: Even if an adverse action is perfectly legal, be careful about the timing and appearance of illegality. Make sure all adverse actions are supported by proper, legal evidence.

References (9)

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